Select Topics in American Law I

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lelsemri
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201941
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Select Topics in American Law I
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2013-02-21 13:44:10
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Professor Mario Mainero Spring 2013
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California Bar Review: Contracts, Torts, Civil Procedure, Criminal Law and Procedure, Real Property
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  1. What two systems of law govern contract disputes?
    • 1) UCC - Goods (items moveable at the time of contract)
    •     a) some special provisions for merchants (buyer or seller in goods of the kind)
    • 2) Common law - everything else
  2. Order of contracts essay
    • 1) Formation
    • 2) defenses to Formatoin
    • 3) defenses to enforcement
    • 4) third party beneficiaries and assignees
    • 5) construction (Parol evidence rule)
    • 6) conditions
    • 7) Breach and remedies
  3. Unilateral v. bilateral contracts, and which one is more common?
    • Unilateral - requires acceptance by performance
    • Bilateral - promise for a promise (more common)
  4. A contract right may be assinged unless
    it would substantially change an obligor's duty
  5. Do assignments require a writing?
    No, unless it is a wage assingment, an interest in land, or a security interest greater than $5000
  6. An assignment is irrevocable when
    • it vests OR
    • 1) the obligor has already performed
    • 2) delivery of a tangible item
    • 3) assignment of a chose action in writing
    • 4) estoppel (foreseeable detrimental reliance)
  7. Can an obligor sue an assignee?
     Yes
  8. Parol Evidence Rule
    Where the parties express their agreement in writing,  with the itnent that it embody the full and final expression of their bargain, any other expressions, written or oral, made prior to the writing, and any oral expressoins made contemporaneous with the writing, are inadmissible to vary the terms of the writing.
  9. Steps of a Parol Evidence Rule analysis
    • 1) Partially integrated or completely integrated - partial integration can be supplemented, but not contradicted
    • 2) prior or contemporaneous terms can vary the terms; subsequent expressions may not vary (unless, under the  UCC, they may modify if consideration is given)
    • 3) if the statements include fraud, duress, mistake, and illegality, other formation defects, they are outside the scope of the rule
    • *UCC distinction - consistent additional terms are admissible unless the writing was intended to be complete and final
  10. condition v. promise
    • promise: commitment to do or refrain from doing something
    • condition: event (other than the passage of time) which will extinguish, modify, limit, or createa duty to perform - modifies a promise
  11. How are conditions classified?
    • time
    • 1) precedent - before duty to perform arises
    • 2) subsequent - cut off duty to perform
    • type
    • 1) express - expressed in contract
    • 2) implied - from parties' conduct
    • 3) constructive - read into the contract by the court
  12. breach
    when a promisor fails to perform a duty; can be minor (obligee gains substantial benefit) or material (obligee does not gain substantial benefit)
  13. discharge of duties under contract may occur by:
    • 1) impossibility - objective, impossible for anyone to perform; not created by actions of parties
    • 2) impracticability - extreme and unreasonably difficult or expensive for the contracting party to perform; difficulty unforeseen; not created by actions of parties
    • 3) frustration of purpose - contract becomes valueless by unforeseen (at time of contract) supervening act which was not fault of party seeking discharge
    • 4) accord (agreement to accept a substitute performance) and satisfaction (performance of the substitute duty)
    • 5) waiver - words or conduct that indicate a party won't insist on a condition being met
  14. What are the two broad types of remedies available in contract actions?
    • 1) Legal (damages)
    • 2) equitable
  15. What are the four requirements for damages under contract actions?
    • 1) causal (but for)
    • 2) foreseeable (at the time of formation)
    • 3) certain (not speculative)
    • 4) unavoidable (plaintiff couldn't mitigate damages)
  16. Three major types of damages in a contract action
    • 1) compensatory (benefit of the bargain)
    • 2) consequential (additional costs or expenses incurred that were foreseeable)
    • 3) nominal
  17. What remedies and damages are appropriate under the UCC?
    Acceptance, rejection, or partial acceptance of non-conforming goods; damages can amount to the difference in the contract price and the market value of the goods delivered or the cost of replacement
  18. What are the equitable remedies available in a non UCC contract action?
    • 1) Specific performance (valid enforceable contract, party has met all conditions, legal remedy is inadequate, remedy is feasible)
    • 2) recission (if mistake- of material fact or misrepresentation-falsity, innocent/negligent/intentional, intent to induce, detrimental reliance)
    • 3) reformation (making the contract to co form to the parties' previous understanding)
  19. General format for tort essay
    • Parties
    • Appropriate torts for each party (subheading for each element)
    • address potential defenses after each tort
  20. What facts prompt a vicarious liability analysis?
    Employees performing their job duties
  21. When is an employee NOT liable for an employee's actions
    • 1) the employee is acting outside the scope of his employment
    • 2) the employee commits an intentional tort
  22. When is an employer responsible for an independent contractor's actions?
    • 1) when the independent contractor is engaged in inherently dangerous activities
    • 2) when the duty is non-delegable (something the employer is responsible for)
  23. What are the international torts (what does transferred intent apply to?)
    • 1) assault
    • 2) battery
    • 3) false imprisonment
    • 4) trespass to chattels/conversion
    • 5) IIED
    • 6) abuse of process
    • 7) malicious prosecution
  24. Civil assault
    • 1) volitional act
    • 2) intent to cause harmful/offensive contact OR apprehension of harmful/ offensive contact
    • 3) actual
    • 4) proximate causation
    • 5) reasonable apprehension of harmful or offensive contact
  25. Civil battery
    • 1) volitional act
    • 2) intent to cause harmful/offensive contact OR apprehension of harmful/offensive contact
    • 3) actually
    • 4) proximately causes
    • 5) harmful/offensive contact (that which a reasonable person would find offensive)
  26. Civil false imprisonment
    • 1) act intending to confine victim to fixed boundaries
    • 2) resulting in such confinement
    • 3) victim is aware of or harmed by confinement
  27. Trespass to chattels/conversion
    • 1) Intermeddling or dispossession
    • 2) personal property
    • 3) of another
    • 4) causes harm to or loss of use of property
    • *conversion is trespass so serious that it warrants replacement of whole value of property
  28. IIED
    • 1) intent to cause severe emotional distress
    • 2) extreme and outrageous conduct
    • 3) conduct causes severe emotional distress
  29. Abuse of process
    • 1) use of legitimate process
    • 2)with wrongful purpose
    • 3) act or threat to accomplish the purpose
  30. Malicious prosecution
    • 1) initiation of civil or criminal proceedings
    • 2) without probable cause
    • 3) for wrongful purpose
    • 4) favorable termination of the proceedings on the merits
  31. Negligence
    • 1) duty (general duty to behave like a reasonable person)
    • 2) breach
    • 3) actual causation (but for)
    • 4) proximate cause (type of harm foreseeable)
    • 5) harm
  32. What constitutes negligence per se?
    • Violation of criminal statute
    • Victim was in class intended to be protected
    • Harm was type sought to be avoided
    • *rebuttable presumption of negligence
  33. Landowner duties in negligence suit
    • 1) generally no duty to protect those outside the land (unless landowner creates condition that is harmful to those immediately next to the land)
    • 2) trespasser - if trespasser is known, duty to warn of artificial dangerous conditions (also attractive nuisance requires balancing)
    • 3) licensee - duty to repair and protect against known dangers
    • 4) invitee - duty to inspect, discover, and repair or protect
  34. Defenses to negligence
    • Contributory negligence (if available in the jurisdiction)
    • Non-pure comparative fault (if available in the jurisdiction)
    • Assumption of risk (if apprehended and understood)
    • Emergency (if defendant didn't create the risk and acted reasonably)
  35. Nuisance
    • Public (interferes with common public interest; public agencies more likely to bring suit)
    • Private ( 1) invasion of use or enjoyment 2) intentional and unreasonable OR abnormally dangerous activities)
  36. Three major areas of strict liability
    • 1) animals (liable for wild animals or livestock or known dangerous domestic animals)
    • 2) abnormally dangerous activities
    • 3) products liability (although not limited to strict liability)
  37. Three theories of products liability
    • 1) strict liability
    • 2) negligence
    • 3) breach of warranty
  38. Strict product liability
    • 1) Defendant is in the business of selling or otherwise distributing products (privity not required - everyone in the chain can be liable to foreseeable users)
    • 2) defendant sells or distributes defective product
    • 3) defect causes harm
  39. Kinds of product defects
    • 1) manufacturing defects
    • 2) failure to warn defects
    • 3) design defects
  40. negligent product liability
    • 1) duty to makea reasonably safe product
    • 2) breach
    • 3) actual
    • 4) proximate cause
    • 5) harm
  41. types of Breach of warranty (product liability)
    • 1) express
    • 2) implied warranty of merchantability
    • 3) implied warranty of fitness for a particular purpose
  42. Breach of express warranty
    • 1) express warranty made concerning the goods
    • 2) breach
    • 3) breach proximately caused loss sustained
  43. Breach of implied warranty of merchantability
    • 1) existence of warranty that goods are fair average quality and fit for the ordinary purposes for which such goods are used
    • 2) breach
    • 3) breach proximately caused loss sustained
  44. Breach of implied warranty of fitness for a particular purpose
    • 1) seller knows of the particular or special needs of the buyer at the time of the sale
    • 2) buyer recommends the product with that knowledge
    • 3) goods are not fit for that purpose (breach)
    • 4) breach proximately caused loss sustained
  45. Defamation
    • 1) defamatory statement
    • 2) of or concerning the plaintiff
    • 3) publication to third person (orally - slander; written -libel)
    • 4) harm (sometimes)
    • 5) falsity of the defamatory language
    • 6) fault
  46. Two major defenses to defamation
    • 1) truth
    • 2) privilege (absolute - if in discharge of official duty; qualified - if made without malice and for a person interested therein)
  47. Three major constitutional issues in defamation suits
    • 1) public officials cannot recover for defamation unless false statements were made with actual malice: knowledge of falsity or reckless disregard
    • 2) public figures or private persons related to matters of public interest can only recover if actual malice
    • 3) matter of public concern - false statement must be faultily made (requires at least negligence)
  48. Four invasion of privacy torts:
    • 1) intrusion (unreasonably and seriously interfering with another's interest in not having his affairs known)
    • 2) public disclosure of private facts (public disclosure, private fact, would be offensive and objectionable to reasonable person, not of legitimate public concern)
    • 3) false light (publicize, private matter, places the plaintiff in a false light, would be highly offensive to reasonable person, if matter of public interest there was malice)
    • 4) appropriation (use of plaintiff's identity by defendant for defendant's commercial purposes)
  49. four types of misrepresentation
    • intentional
    • deceit
    • negligent
    • promise made without intent to perform
  50. intentional misrepresentation
    • 1) false representation re: material fact
    • 2) known falsity or recklessness
    • 3) for the purpose of inducement to act
    • 4) other party acted in reliance on representation
    • 5) injury
  51. negligent misrepresentation
    • 1) false representation re: material fact
    • 2) honest belief in truth without reasonable ground for belief in truth
    • 3) for the purpose of inducement to act
    • 4) other party acted in reliance on representation
    • 5) injury
  52. Interference with economic relations (a contract)
    • 1) interference
    • 2) intentional
    • 3) improper or unlawful
    • 4) contract between two other persons
    • 5) cases one not to perform
  53. Basic requirements for tort damages
    • Causal
    • Foreseeable
    • Reasonably certain
    • Unavoidable
    • (punitive damages only recoverable if conduct malicious, willful,  or reckless)
  54. Contribution
    One tortfeasor who is required to pay more than his fair share can collect fromthe other tortfeasors
  55. Indemnity
    Passing liability farther up the chain
  56. If the question (in a civil case) asks whether the court can exercise jurisdiction over a specific person, analyze:
    personal jurisdiction
  57. personal jurisdiction
    • traditional bases (presence, consent, in rem)
    • long-arm statute
    • does it comply with due process (minimum contacts under International Shoe)
  58. minimum contacts for personal jurisdiction
    • 1) systematic and continous - plaintiff is "at home" (General jurisdiction)
    • 2) if not syst. and cont., then did the cuase of action arise out of the contacts, was there purposeful availment, and was the hailing into court foreseeable (Specific jurisdiction)
    • 3) fairness (grave inconvenience, forum state's interest, plaintiff's interest in convenient relief, all state's interest in efficient resolution, all states interest in social policies)
  59. Federal question jurisdiction
    a case that arises under the constitution, federal law, or treaty
  60. Diversity jurisdiction
    • 1) complete diversity
    • 2) amt in controversy exceeds $75,000
  61. Supplemental jurisdiction
    state claim arises out of same transaction or occurrence as federal question claim
  62. venue
    • 1) discuss whether venue is proper in both venues (the existing and the proposed)
    • 2)a) Federal: is proper i) where any defendant resides, ii) where the events happened, iii) where any defendant is subject to personal jurisdiction (non-diversity cases only) - then balance the conveniences, law of original venue applies
    • b) CA: venue is proper in the county where the real property in dispute is located (local action); i) in any county where any defendant resides ii) where the contract was entered into or was to be performed, iii) where the injury or wrongful death took place (transitory action) - transfer if impartial trial cannot be had, coveneince of witnesses, or no judge qualified
  63. forum non conveniens
    • 1) public factors (availability of alternate forum, plaintiff's choice of forum, forum state's interest)
    • 2) private factors (convenience of parties and witnesses, location of evidence, where cause of action arose)
  64. Erie question
    • 1) only in diversity cases
    • 2) IF Fed rule on point, do state and Fed conflict? If no --> apply Fed
    • 3) If conflict, outcome determinative (elements of claim or defense, statutes of limitations, choice of law rules)? If yes, use state
    • 4) If not outcome determinative, would using Federal rule violate Federalism? If yes, apply state law
    • 5) if not violate federalism, would state law encourage forum shopping? If yes, use Federal law
  65. Removal v. Remand
    • Removal: if there is federal SMJ, a defendant may remove if all defendants join and motion brought within 30 days of complaint
    • Remand: only granted if federal court lacked jurisdiction in the first place
  66. abstention
    federal court holds off on deciding issue to let state court resolve, unless potential of great and irreparable injury, bad faith in prosecution of state action, or harrassment
  67. Federal pleading requirements
    • 1) short and plain statement of grounds for jurisdiction
    • 2) short an plain statement showing entitlement to relief (must include factual allegations to make relief plausible; not legal conclusions)
    • 3) demand for judgment
  68. CA pleading requirements
    • statement of facts constituting cause of action - must be ultimate facts, not legal conclusions or evidentiary facts - surplus is stricken
    • CA allows "Doe amendments" if plaintiff is genuinely ignorant of the identity of a defendant and ignorance is pleaded in the complaint
  69. What are the 5 special demurrers?
    • 1) plaintiff lacks capacity to sue
    • 2) another action pending between parties on the same cause of action
    • 3) face of complaint shows a party should have been joined or was misjoined
    • 4) pleading is uncertain (unintelligible)
    • 5) complaint fails to allege whether contract is written or oral
  70. Motions to strike irrelevant, false, or improper matter are generally allowed, except under
    anti-SLAPP
  71. suits excluded from anti-SLAPP (CA specific)
    • 1) actions brought solely on public interest
    • 2) statements regarding business of a competitor
  72. two types of joinder
    permissive, compulsory
  73. steps to analyzing joinder
    • 1) is joinder proper (is the party a necessary party)?
    • 2) is joinder possible without destroying jurisdiction?
    • 3) is the party necessary? (can complete relief be had without the party)
    • If the party is necessary, but cannot be joined without destroying diversity, then the action should be dismissed
  74. discovery is limited to
    Non-privileged matters that are relevant to the claims of defenses
  75. When is summary judgment granted?
    • 1) no genuine issue of material fact
    • 2) as a matter of law, movant prevails
    • (Fed deadline is 20 days from commencement of action; CA 60 days after defending party has filed an appearance)
  76. Motion for judgment
    • 1 ) made at the close of plaintiff's evidence (defendant's motion) or at the close of all evidence (either party's motion)
    • 2) granted only if no reasonable person could differ as to the outcome
  77. motion for new trial
    only permitted if party properly and timely moved for judgment in the first place
  78. Waiver of 7A jury trial right
    • Fed: if not demanded in Complaint --> waived
    • CA: if fees not posted shortly before trial --> waived
  79. five elements of class certification
    • 1) numerousity
    • 2) commonality
    • 3) typicality
    • 4) adequacy of representation
    • 5) risk of inconsistent results OR injunctive or declaratory relief appropriate OR common questions among class predominate over other claims
  80. Res judicata (claim preclusion) applies when
    • 1) valid final judgement on the merits (fed: trial level; CA - on appeal)
    • 2) same claimant against same defendant
    • 3) same cause of action
    • 4) litigated or could have been litigated in the first action
  81. defensive Collateral estoppel (issue preclusion) applies when
    • 1) valid final judgment on merits
    • 2) issue was actually litigated and determined in the first case
    • 3) issue was essential to the judgment
    • 4) party asserted against was a party or was in privity with a party
  82. offensive collateral estoppel is allowed when
    • 1) issue decided in first case is identical to issue in second case
    • 2) first case ended in valid, final judgment on merits
    • 3) party against judgment is to be used had fair opportunity to be heard
    • 4) would not be unfair to apply collateral estoppel
    • (CA: party used against was a party or was in privity)
  83. larceny
    • 1) no consent
    • 2) taking
    • 3) carrying away
    • 4) tangible personal property of another
    • 5) intent to permanently deprive
  84. embezzlement
    • 1) fraudulent
    • 2) conversion
    • 3) property of another
    • 4) by a person in lawful possession of that property
  85. false pretenses
    • 1) obtaining title
    • 2) property of another
    • 3) intentional or knowing false statement of past or existing (not future) fact
    • 4) intent to defraud another
    • 5) false statement causes owner to part with title
    •  (larceny by trick - obtaining possession, but not title)
  86. Robbery
    • 1) taking
    • 2) personal property
    • 3) of another from other's person or presence
    • 4) force or threat of force
    • 5) intent to permanently deprive
  87. burglary
    • 1) breaking (constructive or actual)
    • 2) entereing
    • 3) dwelling of another
    • 4) at night (not in CA)
    • 5) with intent to commit felony therein
  88. Arson
    • 1) malicious
    • 2) burning
    • 3) dwelling of another
    • 4) damage by fire
  89. criminal assault
    • 1) attempt to commit a battery OR
    • 2) creation by other than mere words a reasonable apprehension of imminent bodily harm
  90. Criminal battery
    • 1) unlawful
    • 2) application of direct or indirect force
    • 3) person of another
    • 4) resulting in bodily injury or offensive touching
    • (aggravated if: deadly weapon, serious bodily injury, victim is child/woman/police officer)
  91. Mayhem
    dismemberment or disablement of body part
  92. kidnapping
    • 1) confinement
    • 2) movement or concealment
    • 3) in a secret place
    • (aggravated if for ransom, to commit other crimes, for offensive purpose, child stealing)
  93. rape
    • 1) no consent (ineffective if accomplished by force, threats, or consent is not possible)
    • 2) sexual penetration
    • 3) of a woman
  94. Homicide
    • 1) unlawful killing
    • 2) human being
    • 3) malice aforethought (intent to kill/intent to inflict GBI/acting with reckless indifference/felony-murder)
  95. All murder is ____ if it is not ____.
    second degree; first degree
  96. First degree murder is:
    premeditated (after a brief period of reflection) and deliberate (cool and dispassionate)
  97. voluntary manslaughter
    • 1) intentional killing
    • 2) another human being
    • 3) adequate provocation (a) sufficient to cause an ordinary person to lose self-control, b) defendant was provoked, c) insufficient time to cool off, d) defendant didn't cool off
  98. Involuntary manslaughter
    • 1) criminal negligence OR commission of a misdemeanor
    • 2) resulting in the death of another
  99. attempt
    • 1) intent to commit a crime
    • 2) overt act in furtherance
    • (factual impossibility is not a defense, but legal impossibility is)
  100. solicitation
    • 1) incite, counsel, advise, induce, urge, command another
    • 2) to commit a crime
    • 3) with the intent that the crime be committed
  101. conspiracy
    • 1) agreement between two or more persons
    • 2) intent to enter into agreement
    • 3) intent to achieve the objective (can be shown by an overt act)
  102. Accomplice liability
    • 1) defendant encourages or assists
    • 2) another person who commits a crime
    • 3) with intent to promote or facilitate the commission of the crime
    • (liable for all foreseeable acts)
  103. Accessory after the fact
    receive, comfort, or assist another with knowledge he has committed a felony with intent to help felon escape
  104. Self-defense
    • 1) without fault
    • 2) confronted with unlawful force
    • 3) threatened with imminent death or GBI
    • (no duty to retreat)
  105. defense of another
    • 1) reasonable force
    • 2) reasonably believe the other is entitled to use force in self-defense
  106. intoxication defenses
    • voluntary: only if crime is specific intent
    • involuntary: treated like insanity
  107. What are the four insanity doctrines?
    • 1) McNaughten: defendant lacks ability to appreciate the wrongfulness of his actions
    • 2) irresistible impulse: inability to control actions
    • 3) durham: crime is product of mental disease
    • 4) ALI/MPC: result of mental disease was that defendant couldn't appreciate the criminality of his actions or conform his conduct to the law
  108. first two factors to address with 4th amendment issues
    • 1) gov't action
    • 2) standing (reasonable expectation of privacy - subjective and objective components)
  109. Justification for stop and frisk
    • stop
    • reasonable suspicion
    • based on specific and articulable facts
    • defendant is engaged in criminal activity
    • frisk
    • for weapons only
  110. police checkpoints
    • 1) cars stopped on neutral, articulable standard
    • 2) roadblock is designed to serve purposes closely related to a particular problem related to automobiles (drunk driving or immigrant smuggling)
  111. Requirements for valid warrant
    • 1) describe the place to be searched and things to be seized with reasonable particularity
    • 2) issued by neutral magistrate
    • 3) no willfully false statements
  112. warrant exceptions
    • 1) consent
    • 2) plain view
    • 3) automobile exception
    • 4) search incident to lawful arrest (including protective sweep if there is PC that the accused has accomplices nearby)
    • 5) exigent circumstance (evidence will be lost or destroyed if warrant is obtained)
  113. when will the exclusionary rule NOT be applied?
    • 1) seizure was lawful
    • 2) good faith exception
    • 3) if defendant testifies - for impeachment
  114. What constitutional amendments govern the admissibility of confessions?
    14th (voluntariness), 6th (right to counsel which attaches post-charging), 5th (miranda)
  115. Can statements taken in violation of the 5th, 6th, or 14th amendments be admitted?
    No, but those taken in violation of Miranda can  be used to impeach
  116. which  amendments govern the admissiblity of pretrial identifications?
    6th (right to counsel if lineup is post-charging) and 14th (cannot be unreasonably likely or substantial likelihood of misidentification)
  117. can subsequent ID's be considered fruits of prior ID's?
    Yes
  118. can a police informant deliberately elicit after a defendant has been charged?
    no
  119. What must a judge notify a defendant of before a plea is accepted?
    • 1) nature of charge
    • 2) critical elements of the charge
    • 3) maximum penalty
    • 4) mandatory minimum penalty
  120. Four factors to consider if right to speedy trial has been afforded.
    • 1) length of delay
    • 2) reason for delay
    • 3) whether defendant asserted his right
    • 4) prejudice to the defendant
  121. IAC
    • 1) counsel's representation fell significantly below reasonable standard of care
    • 2) but for the failure defendant would not have been convicted
  122. Key to organizing a property exam
    treat each document or transaction separately and chronologically
  123. adverse possession and easement by prescription
    • 1) open and notorious (would put a reasonable person on notice)
    • 2) actual and exclusive (only the possessor uses the property)
    • 3) hostile or adverse (without owner's permission)
    • 4) continuous (used for the purpose and manner usually intended)
    • 5) for statutory period
    • *does  not give marketable title, only possession
  124. what are the estates in land, and what are they followed by?
    • life estate - reversion or remainder
    • fee simple determinable (to a so long as...) - possibility of reverter
    • fee simple subject to condition subsequent(to a unless ...,and then to b) - right of re-entry
    • fee estate - executory interest
    • life estate - remainder
    • (lesser interests can be merged to form greater estates)
  125. class gifts
    class closes whenever some member of the class can call for distribution of their share (unless otherwise specified in the instrument)
  126. RAP applies to which interests?
    • 1) contingent remainders
    • 2) executory interests
    • 3) class gifts
    • 4) options and rights of first refusal
    • 5) powers of appointment
  127. RAP
    measuring lives (who can produce heirs named) plus 21 years = time in which the interest must vest
  128. do liens and mortages sever joint tenancies?
    no
  129. In an assignment, who is liable for rent?
    both the assignor and the assignee
  130. What are a landlord's covenants?
    • 1) deliver timely possession
    • 2) quiet enjoyment and non-disturbance
    • 3) implied warranty of habitability (no rats or flooding)
  131. what are a tenant's remedies for a breach of the warranty of habitability?
    • 1) move out and terminate the lease
    • 2) repair and offset rent
    • 3) seek damages
  132. Tenant's covenants
    • 1) pay rent (Breach => right to evict)
    • 2) covenant to repair damage caused by tenant
    • 3) covenant not to commit waste
  133. are covenants within a lease dependent on each other?
    no, a breach of one does not excuse the other (except for the covenant to pay rent)
  134. What are the types of waste and their remedies?
    • 1) Voluntary (deliberate destructive acts) - injunction, damages = diminuition in value or cost of repairs
    • 2) Permissive (omission or neglect) - cost of repairs
    • 3) Ameliorative (alteration that increases property value) - costs of restoring property to previous condition
  135. What is an easement?
    the right to use land for a particular purpose
  136. what is a profit?
    the right to take specific things (timber, coal) from the land
  137. what is a license?
    a failed attempt to create an express easement that is terminable at will
  138. What are the types of easements?
    • 1) express (with a writing)
    • 2) reservation (grantor of property keeps the easement for himself when granting the property to another
    • 3) implication (conduct over a long period of time permitted by property owner)
    • 4) necessity (for access to public roads, two parcels were once a single parcel)
    • 5) prescription (adverse possession)
  139. how are easements terminated?
    • expressly (orally or written)
    • PLUS action of abandonment
  140. equitable servitude
    a covenant, that, regardless of whether it runs with the land, will be enforced via injunction because of fairness concerns
  141. are damages available as a remedy for a breach of a covenant?
    yes
  142. When will a burden "run with the land"?
    • 1) intent to create the interest
    • 2) notice (Actual, constructive, or inquiry) of the interest created
    • 3) privity between original parties who established the covenant
    • 4) privity between original burdened party and the current burdened party (i.e. they own the same estate/interest type)
    • 5) the interest makes the benefitted land more useful to the benefitted party ("touch and concern")
  143. When will a benefit "run with the land"?
    • 1) Intent
    • 2) privity between original benefitted party and new benefitted party (own same estate/interst type)
    • 3) the interest makes the benefitted land more useful to the benefitted party ("touch and concern")
  144. implied reciprocal servitude
    Ex: HOA regs - everyone is prevented from doing the same thing for everyone else's benefit (intent, notice, touch and concern)
  145. What is the one major defense to equitable servitudes?
    changed neighborhood conditions relative to the purpose for which the easement was created (there is now a road where there is none, so the easement is no longer necessary)
  146. What are the elements of  a valid conveyance?
    • 1) deed executed
    • 2) deed delivered
    • 3) deed accepted
  147. What covenants does a general warranty deed contain?
    • Present (if violated only at time of conveyance)
    • 1) seisin
    • 2) right to convey
    • 3) against encumbrances not appearing on title
    • Future (breached at time of claim against title)
    • 1) quiet enjoyment
    • 2) warranty (defend against title defects)
    • 3) further assurances (perfect title if necessary)
  148. What are the three types of recording statutes?
    • 1) race (whoever records first)
    • 2) notice (protects bona fide purchasers[without notice] even if they don't record)
    • 3) race-notice (protects bona fide purchasers who record before previous unrecorded title)
  149. Who are the parties to a deed of trust?
    • 1) beneficiary (lender)
    • 2) trustor (borrower)
    • 3) trustee (title company)
  150. When is a deficiency judgment available
    in a judicial foreclosure on a property which is not a single family home when the sale does not cover the value of the outstanding loan
  151. Who must be given notice of foreclosure proceedings?
    anyone with an interest in the property who the foreclosing party has notice (any of the three types) of
  152. Can a mortgage be foreclosed in non-judicial proceedings?
    no
  153. Two doctrines of water rights
    • Riparian - whoever abuts the water has the water rights, but subject to the reasonable use requirement
    • first in time - if scarcity occurs, then the junior acquirers of water rights have them taken away

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